Judgement Civil Case No

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY

AT MOSHI CIVIL CASE NO. 04 OF 2023 LEONARD IRMSCHER……………………………………..…..1ST PLAINTIFFF INFINITY SHAMBA COMPANY LIMITED …..………………..2ND PLAINTIFF

VERSUS NAHORI DAWSON MOSHI……………………….…...…….....DEFENDANT

JUDGEMENT Date of Last Order: 22.02.2024 Date of Judgment: 30.04.2024 MONGELLA, J. The matter at hand concerns breach of contract for building entered between the 1st plaintiff on behalf of the 2nd plaintiff and the defendant. The 2nd plaintiff is a limited liability company with its offices here in Moshi while the 1st plaintiff, Leonard Irmscher, is a shareholder and director of the 2nd plaintiff. The background of this matter is to the effect that: on 22.02.2021, the 1st plaintiff entered into an agreement with the defendant for construction of multiple structures to wit; a wall, a residential house, three pig huts, chicken extensions and a store and a butchery. The said structures were to be constructed at a piece of land situated Page 1 of 19 at Munge Village, Elerai, in Siha district, Kilimanjaro region. The two came into contact through a connection by a mutual friend. They discussed the sketch of designs made by the 1st plaintiff and agreed that the work should be performed on required standard and within 90 days. The agreed cost of the project was TZS. 30,000,000/= payable in three instalments. The 2nd plaintiff made payments for two instalments and only a balance of TZS. 4,000,000/= remained. On 07.02.2022, allegedly heavy rainfall fell on the site thereby destroying some of the structures, thus occasioning great loss to the plaintiffs. It is the plaintiffs’ claim that

the collapsing of structures was greatly caused by poor work done by the defendant. In that respect, the plaintiffs allege breach of agreement between them and the defendant occasioned by the defendant. They thus seek for the following reliefs: a) Payment for the damage due to the destruction suffered amounting to Tanzanian Shillings 270,704,765.2/=; b) Payment for the loss of Profit amounting to Tanzanian Shillings 176,000,000/= c) General damages to be assessed by this Honourable Court; d) Payment of interest on the sums prayed above at the commercial bank rate (27% p.a) from the time of filling till judgment; Page 2 of 19 e) Payment of interest on the decretal amount from the time of judgment till payment in full; f) Costs of this suit in favour of the Plaintiff; g) Any other or further relief this Honourable Court may deem fit to grant. On this part, the defendant disputes breach of the construction agreement. Rather, he claims force majeure. He avers that the fallen structures were hit by a typhoon in the area that even caused the collapse of other neighbouring houses in the village. He also alleged that the agreement was for the sum of TZS 30,000,000/- to be paid in two instalments, however only one instalment of TZS 15,000,000/- was paid. He claimed the remaining balance to be a total of TZS 15,000,000/-. By this claim, the defendant appears to raise a counter claim through the back door, which is improper. Mediation having failed, the court and the parties met to fix the issues for determination of the dispute at hand, to wit: 1. Whether there was a construction contract between the parties.

2. Whether the defendant breached the contract.

3. Whether the plaintiffs suffered damages.

4. To what reliefs are the parties entitled to. Page 3 of 19 In proving the case, the plaintiffs had two witnesses. Mr. Leonard Irmscher, the 1st plaintiff, testified as PW1 and tendered 8 Exhibits. PW2 was one Fredson George Mkonyi, a qualified civil engineer. The defendant testified solely and had any exhibit to tender. Throughout the trial, the plaintiffs were represented by Ms. Patricia Eric and Ms. Lilian Didas Mushi. On the other hand, the defendant was unrepresented. To this point, I shall resolve the issues in seriatim. With regard to the 1st issue, PW1 testified that there was a contract duly executed between himself on behalf of the 2nd plaintiff on 22.02.2021. That the said contract bears his own names and those of the defendant. He alleged that he signed the contract on behalf of the 2nd plaintiff, who was at the time without a physical address, although had been registered in 2020. That the contract was for construction of a wall, a residential house, 3 pig huts, 1 chicken hut and a chicken extension which had three rooms or spaces, as well as, a slaughter room or store. PW1 stated that he designed the structures and gave the defendant copies so he could calculate the costs. They also agreed that the cost for the agreed work would be TZS 30,000,000/= payable in three instalments. That the 1st instalment would be TZS 10,000,000/-, the 2nd TZS 5,000,0000/= and the

final TZS 15,000,000/=. The contract period was 90 days from the date it was executed. The defendant was further required to obtain insurance for the project. PW1 tendered the said contract which was admitted as Exhibit P2. The building structure plans were also admitted as Exhibit P3. Page 4 of 19 The defendant did not object the admission of Exhibit P2 nor P3. In his evidence he testified to have entered into an agreement with PW1 and the same involved construction of a wall, a business house 3 pig huts, chicken hut, store, slaughter place and place for packing goods. He added that he was also required to construct a garage after he was done with other structures, but the same was not part of the contract. Considering the facts as above, it is evident that there is no dispute that the 1st plaintiff and the defendant duly executed a construction agreement on 22.02.2021. This is well reflected under Exhibit P2 which bears the name of the defendant as the contractor and the PW1 as the customer. Exhibit P2 indicates that the construction was set to take place at Munge village within Elerai Hamlet in Siha district, Kilimanjaro region. The cost and how the payments would be effected in instalments is also reflected under clause 3. Clause 2 therein indicates that the contract would involve several documentation including building designs and permits. In the premises, I find the 1st

issue proved in the affirmative. Considering the nature of evidence produced before this court, I find it plausible to jointly determine the 2nd and 3rd issues being that they are interrelated. Foremost, as I have pointed out earlier, the contest between the parties follows events of 07.02.2022 whereby a strong wind coupled with heavy rain fell on the site where the alleged construction was taking place. The weather caused damage on the erected Page 5 of 19 structures. In the plaintiffs’ view, the damage was only partly affected by the weather, mostly a result of poor work performed by the defendant. On his part, the defendant blames it all to the bad weather and to the 1st plaintiff. When adducing evidence, PW1 blamed the defendant for breaching the contract on three main grounds being, one, failure to insure the project; two, poor work standard and; three, failure to complete the project in the 90 days agreed upon. As to insurance details, it is evident under clause 5.1 of Exhibit P2, that the defendant was required prior to commencing construction, to obtain an insurance covering the plaintiff’s property and workmen in the area. The clause states: “5.1 Mkandarasi atahakikisha kwamba kabla hajaanza kazi ya ujenzi ananunnua na kudumisha, kwa gharama zake bima itakayo linda mali za Mteja pamoja na watu watakao kua wanafanya kazi katika eneo la Mteja ikiwa ni bima dhidi ya dhima

zote pamoja na maafa ya aina yoyote katika eneo la kazi.” The insurance was meant to cover all liabilities including any disasters at the work place. As testified by PW1, the defendant did not obtain any insurance. The defendant admitted the same during his cross examination by Ms. Eric. In that respect, I can rightly conclude that the defendant breached the terms under Clause 5.1 of the construction contract. Page 6 of 19 Regarding the claim of poor work standard, according to PW1, the defendant’s poor work standard largely contributed to the damage of the site structures. PW1 claimed that a huge part of the wall, more than half of the wall, fell down. He also claimed that the roof of the chicken hut was highly damaged. Further that, part of the water tank got destabilized. PW1 testified that following the damage, he sought for an expert opinion from Concrete Steel Builders Limited owned by PW2. That, PW2 assessed the damage on the site and issued a report. The said report was tendered and as Exhibit P5. Part of the damage was captured in photographs taken by PW1. The same were admitted collectively as Exhibit P6. Exhibit P6 which was issued on 26.02.2022, gave a clear description of the site. The same indicated that the earthworks, concrete works, steel works, blockworks, roofing works and plastering works were all done in poor standard. PW2 gave a much-detailed account of

the damage of the structures. He said that upon inspecting the site, he found the structures, particularly the fence wall damaged at more than 65%. That, more than 65% of the fence wall which was about 8,000sqm had fallen down. He added that they also found a chicken hut of 9 x 38 metres had fallen down. Also, some pig huts had fallen down and others had their roofs taken away. Page 7 of 19 He said that in their investigation they noted that the biggest cause for the falling was poor work done. Explaining it professionally, he said that construction considers two main things; one is professionalism and two, is quality of the materials such as cement and sand which are mixed to make concretes and bricks. On the claims at hand, he said that poor quality was on mixing of concrete and cement motor for joining bricks. That the mixing was not done in the required standard. He further testified that they checked the motor and found it was weak, something which suggested weakness of the structure. That the concrete was not properly mixed. That, the columns had plain concrete instead of reinforced concrete which comprises concrete mix and reinforcement bars. He said that, since the wall was long at the length of 4+ metres, it needed iron bars of 16mm linked with those of 8mm at a distance of 20 centimetres. However, he said, what was used was plain concrete which had iron/still bars

inside. Testifying further, he said that they also noted that the general excavations of the foundation did not adhere to the building rules. That, they checked the length, which they found not meeting the required standard. Explaining further on that, he said that the length was not supposed to be below 600mm (0.6metre), but what they found was at the range of 100-300mm (0.1-0.3metres). Further, he said that the defendant was supposed to dig footings for carrying columns which was supposed to be at 1000mm x 1000mm-800mm depth, however the footings were not there at all. Page 8 of 19 He added that even the distance between the columns was bigger than the required standard. Explaining the standard, he said that it is supposed to be 2500mm centre to centre, they found it was between 4000mm and 4500mm. He explained further that after digging the foundation, one has to start with blinding (grade 10-15 concrete) of width of 50-100mm. However, he said, they found no ground beam. He added that, after block work of the foundation, there is supposed to be plinth beam. That this is the beam that surrounds the foundation to make it stronger, but it was not there. Explaining further, he said that the blocks were also of poor quality as when crushed they washed away. About the wall, he said that, since it was long, it was supposed to have two beams, that is, the intermediate beam and top

beam. He explained that these are reinforcing beams after the plinth beam, however there was no any intermediate beam on the structure. That there was only plain top beam. PW2 further explained the defects observed on the electric fence. He said that there was top electric fence, which usually bear members used to receive the wires-hole-section poles. He said that the same were supposed to be 25 x 25 x 1.5mm, however what was used was 25 x 25x 0.8mm. That, at the main gate they found the poles standing, but were dangerous as they got shock and thus could not sustain. So, he said, they advised the same be demolished. However, when demolished, they were found to have still bars of 10mm instead of 16mm as the required standard. He Page 9 of 19 added that there was part of the fence that remained, but was weak. That, in the situation, they advised him to demolish it, which was done. With respect to the hut roofs, he said, the problem resembled the one on the wall. That, they had no columns for reinforcement and there was no intermediate beam. That there was top beam but not of the required standard. He added that even the still bars used were not correct as instead of being 4 bars of 12mm as the required standard, they were 3 of 10mm. He added that the roof had structural problems as it was made of timber, which was not correct due to the width. He said, what was required in the

circumstances was still roofing. He added that even the timber used was of low quality as it was 50 x 100mm while it should have been at least of 50 x 150mm. He though insisted that the recommended material was still roof-structure taking into account the width of the roof. Still on the roofing, he said that the roofing sheets were also found to be of low quality. That they were of 30 gauge instead of 21 gauge. Explaining the causes that can lead to falling of structures, PW2 further stated that structures fall on various reasons, one of them being natural disasters such as wind, floods, etc. The second reason, he said, is the quality of the structure considering the profession and materials as he had already explained. In the case at hand, he firmly stated that the structures at 95% fell due to poor workmanship and poor materials. That it was only 5% percent that was caused by the natural disaster (wind) that happened. He had the opinion that Page 10 of 19 the disaster unveiled the weakness of the structures that already existed. He concluded by identifying and acknowledging Exhibit P5 as being the report he made following assessing the damage on the site in dispute. The defendant did not have much to say on this rather than that he had warned PW1 regarding the height of the wall which rendered the same unstable. In fact, he shifted the blame on the 1st plaintiff for insisting

on the long wall structure. About the building materials, he also blamed the 1st plaintiff as he was the one who purchased the same. Considering PW2’s testimony, I am of the considered view that the plaintiffs have adequately proved under balance of probabilities that indeed the damage on the respective structures was occasioned greatly by the defendant’s poor work. This depicts not only that the contract was breached as the defendant failed to perform the work assigned to him on the required standard, but he also lacked the respective capacity to accomplish the said task while he had made PW1 believe he was capable of implementing the task. The plaintiffs as well complained that the defendant failed to complete the task on time agreed. On this, PW1 testified that the project took almost a year instead of the agreed 90 days. The defendant, on the other hand, cross examined PW1 in regard to there being an extended time. PW1 however, denied there being Page 11 of 19 any agreement on extension of the contractual period. The defendant maintained his stance during his defence testimony. However, when cross examined by Ms. Eric, he alleged that PW1 caused the delay as he stopped construction for lack of materials. He alleged that they communicated in regard to extension of time. On record, it is no doubt that the contract was set to commence on 22.02.2021 and immediately thereon, the

construction was to start. The duration of the project was 90 days as found under clause 9.1 of Exhibit P2. Evidently, when the disaster took place on 07.02.2022, almost a year later, the defendant was yet to complete the project. The claim by the defendant that there was extension of time has not been substantiated. In that respect, this term of the contract was also breached thereby occasioning loss to the plaintiffs. Now, having found the 2nd and 3rd issues proved in the affirmative, the question that follows is to what reliefs the plaintiffs are entitled to. Under Paragraph 22 the plaintiffs claimed to have suffered specific damages at the tune of TZS 446,704,765.2/-. This sum is categorised into three parts being: TZS 113,781,700/- for damaged construction materials due to the fall (para 22.1); TZS 156,923,065.2/- for rehabilitation costs of the fallen buildings (para 22.1.2); and TZS 176,000,000/- for loss of profit had the project taken over on the scheduled time. However, in the relief section, the sums for Page 12 of 19 damaged construction materials and rehabilitation appear to have been combined making a total of TZS 270,704,765.2/-. The law is trite that specific damages must be specifically pleaded and strictly proved. See, Stanbic Bank Tanzania Limited vs. Abercrombie & Kent (T) Limited (Civil Appeal 21 of 2001) [2006] TZCA 7 TANZLII; M/S Universal Electronics &

Hardware T. Limited vs. Strabag International GMBH Tanzania Branch (Civil Appeal 122 of 2017) [2021] TZCA 125 TANZLII and; SANLAM General Insurance Tanzania Ltd vs. Dennis Charles & Another (Civil Appeal No. 51 of 2021) [2024] TZCA 105 TANZLII. In SANLAM General Insurance Tanzania Ltd vs. Dennis Charles & Another (supra), when expounding the difference between general damages and specific damages, the Court referred with approval the case of Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, (a Kenyan decision) in which Kimaru, J. aptly held that: "In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred.... Special damages and general damages are used in corresponding senses. Thus, in personal/ injury claims, 'special damages' refer to past expenses and lost earnings, Page 13 of 19 whilst 'general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities.... Special damages are in the nature of past pecuniary losses

or expenses while general damages are futuristic pecuniary loss or expenses.” To prove the claimed specific damages, PW1 tendered EFD receipts on the alleged purchased construction materials and rehabilitation costs. These were admitted as Exhibit P7 and P8, respectively. In both receipts the payer appears to be the 2nd plaintiff-Infinity Shamba Company Limited, with TIN 139-077-288. Adding up the amounts in the EFD receipts in Exhibit P7, it makes a total of TZS 100,000,000/- paid to one Emmanuel Grason Shuma. The exhibit contains several receipts (five receipts) payable at different dates being: TZS 25,000,000.00/- on 21.04.2022; TZS 25,300,000.00/- on 23.04.2024; TZS 28,000,000.00/- on 06.05.2022; TZS 9,700,000.00 on 09.05.2022; and TZS 12,000,000.00/- on 07.05.2022. Upon close scrutiny of all the receipts in Exhibit P7, I found that there is no any detailed explanation as to the exact materials and quantities thereof the paid amounts covered for. The receipts only generally mention that they were for hardware. The plaintiffs also did not accompany the receipts with any proforma invoice from the supplier showing the exact items purchased. In his testimony, PW1 gave a general account of the material saying that it was cement, nails, etc, but this is not reflected anywhere. Besides, the Page 14 of 19 total amount contained in the receipt of TZS 113,781,700/- for damaged

construction materials due to the fall (para 22.1), does not match the total amount under Exhibit P7. In the circumstances, I find this part of the claim unsubstantiated. Further, adding up the amounts in the EFD receipts in Exhibit P8, it brings a total of TZS 221,099,959.3/-. This contains eight receipts paid to Concrete Steel Builders Limited. The receipts show that different amounts were paid on a single date, that is, 25.10.2022, but at different times. In fact, the difference in time in within minutes and seconds. The receipts contain sums being; TZS 66,063,524.00/-; 12,788,321.45; 52,122,760.51; 29,211,785.06/-; 6,200,310.00; 14,068,305.78/-; 15,351,210.00/-; and 25,293,742.50/-. Again, upon close scrutiny of Exhibit P8, I found no detailed explanation of the exact expenses the paid amounts covered. The receipts generally mention it is for “contractor.” Likewise, no proforma invoice was issued to accompany the alleged receipts to prove the exact payments. Considering PW2’s testimony and the contents of Exhibit P5 (the damage assessment report), it is no doubt that PW2’s company was engaged to rehabilitate the damage occasioned at the site. However, the testimony and the exhibit do not prove the amount alleged to have been specifically incurred for rehabilitation. Since PW2’s company was the issuer of the receipt, I expected the plaintiffs to cause him identify the

receipts “Exhibit P8” and testify Page 15 of 19 as to the exact expenses it covered for the specific damages claimed therein to have been strictly proven. This was unfortunately not done. Instead, PW2 was only made to identify “Exhibit P5.” In addition, just like in Exhibit P7, the amount claimed of TZS 156,923,065.2/- for rehabilitation costs of the fallen buildings (para 22.1.2), does not match the amount contained in the receipts under Exhibit P8, which totals to TZS 221,099,959.3/-, a figure higher than the amount claimed to have been spent for rehabilitation. In the premises, this claim is as well found not to have been strictly proven. The plaintiffs further claimed that they suffered loss of profit. PW1 explained that the plaintiffs anticipated to commence their business in piggery and chicken keeping after the project was completed in 90 days agreed in the construction contract. As well explained in Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho (supra), anticipated loss is not awarded under specific damages. Specific damages cover actual loss suffered. See also, Eligius Kazimbaya vs. Pilli Prisca Mutani @ Pilli Prisca Yangwe Mutani & Another (Civil Appeal No. 163 of 2019) [2020] TZCA 1886 (4th December 2020), which settled that specific damages are those that compensate the plaintiff for quantifiable monetary losses, which are direct losses. As

such, the claim of TZS 176,000,000/- claimed under special damages for loss of profit had the project taken over as planned cannot be awarded. It is based on speculation. The claimed Page 16 of 19 amount would be payable if the plaintiffs were already in business whereby, they would have presented books of accounts showing the profits they used to earn before the loss. The plaintiffs as well prayed for general damages. “General damages are such as the law will presume to be direct, natural or probable consequence of the act complained of; the defendant’s wrongdoing must, therefore, have been a cause, if not a sole, or a particularly significant, cause of damage.” See, Tanzania Saruji Corporation vs. African Marble Company Ltd. [2004] TLR 155. They are therefore, damages upon which the claimant has to provide proof to a certain extent of existence of the facts he claims to have happened to justify payment thereof. As I noted earlier, it is undisputed that the 1st plaintiff, on behalf of the 2nd defendant, entered into a construction contract with the defendant to construct various structures. As well, as found under the 2nd and 3rd issues, the defendant breached the contract for having a hand in the damage at more than 90%, thereby causing loss to the plaintiffs. The defendants thus suffered damage hence, entitled to general damages. However, on the other hand, considering the

plaintiffs’ conduct in the project, I am of the view that they as well played contributory negligence. This is because he knew that the defendant was a local builder (local “fundi” as he called himself) yet he engaged him in such a massive project without being sure of his credentials Page 17 of 19 and capability to perform the task. He just banked on the defendant’s words and of the person he claimed to have connected him with the defendant. This is further proved by the facts testified by PW1 whereby he said that they instructed the defendant to obtain insurance on the project, which he did not do. Despite that, the plaintiff never inspected and went ahead to conclude the deal with him. That should have been a wakeup call on his part. In addition, I also consider the fact that there happened bad weather whereby heavy rains fell and strong winds occurred causing damage to a number of households around the area. The testimony of PW2, an expert in construction, and the report he prepared “Exhibit P5” showed that the weather as well contributed a percentage, albeit minimal, on the destruction on the structures. As such, I hereby award the plaintiffs general damages to the tune of TZS Forty Million (40,000,000/-). The plaintiffs further prayed for a bank interest rate of 27% per annum from date of filing to date of judgement for both specific and general damages. It is imperative

to note that interest on general damages is awarded from the date of judgement to the date of payment. This is because the same are ascertained by the court. See, Saidi Kibwana and General Tyre E.A. Ltd vs. Rose Jumbe [1993] TLR 175 and Anthony Ngoo & Another vs. Kitinda Kimaro (Civil Appeal 25 of 2014) [2015] TZCA 269 TANZLII. In that respect, I award interest on general damages at 7% per annum from the date of Page 18 of 19 judgement to the date of full payment in accordance with the provisions of Order XX Rule 21 (1) of the Civil Procedure Code, Cap 33 R.E.

2022. The plaintiffs are as well awarded costs of the suit. It is so ordered. Dated and delivered at Moshi on this 30th day of April, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 19 of 19